Abstract

Many indigenous peoples are suspicious of ‘bioprospecting’. They fear that
traditional knowledge and resources will be misappropriated by an unholy
alliance of corporations and governments. Trends in international law justify
these concerns. Moreover, even ‘enlightened’ bioprospecting institutions
give insufficient priority to the welfare of local communities. In response,
indigenous peoples are seeking to re-establish control over their territories
and prevent bioprospecting without their authorisation.

Introduction

Exploring tropical forests for new pharmaceutical leads is being promoted
enthusiastically as an innovative way to save the forests. ‘Bioprospectors’
express optimism that they can help to implement the 1992 Convention on
Biological Diversity by encouraging biodiversity conservation and stimulating
capacity building in developing countries. Many indigenous peoples, though,
are sceptical of existing bioprospecting agreements. As this article will
explain, most agreements are based upon acceptance of two international
trends which indigenous peoples feel threatened by. These are the standardisation
of intellectual property rights law, and the extension of nation state
sovereignty to encompass all biogenetic resources within national boundaries.

A brief history of bioprospecting

Bioprospecting is the collection and screening of biogenetic resources
for industry. One of the first scientists to argue that such an activity
could constitute the basis for a conservation strategy was Thomas Eisner
of Cornell University, USA (1990). In 1989 Eisner and his colleagues in
the International Society of Chemical Ecology adopted the Göteborg
Resolution, which stated (Eisner and Meinwald, 1990):

Natural products constitute a treasury of immense value to humankind.
The current alarming rate of species extinction is rapidly depleting this
treasury, with potentially disastrous consequences. The International Society
of Chemical Ecology urges that conservation measures be mounted worldwide
to stem the tide of species extinction, and that vastly increased biorational
studies be undertaken aimed at discovering new chemicals of use to medicine,
agriculture and industry. These exploratory efforts should be pursued by
a partnership of developing and developed nations, in such fashion that
the financial benefits flow in fair measure to all participants.

The recent resurgence of natural product-based research by the pharmaceutical
industry (Reid et al., 1993:6-15) is mainly due to technological
advances. However, as Eisner acknowledges (1994), bioprospecting is hardly
new. Since 18th century ‘gene hunters’ from Europe and North America have
‘discovered’ botanical treasures in the tropics (see Juma, 1989; Joyce,
1994), and these have generated enormous wealth. Indeed, for several generations
virtually everybody living in the biodiversity-poor North has been a beneficiary
of
free northward transfers of biological resources (Table 1).

Table 1: The past and present contribution of biodiversity-rich countries
to humanity

However, a number of influential conservationists believe that the world
is undergoing an extinction ‘spasm’ (Myers, 1979; Myers, 1989; Wilson,
1992), and that many resources are vanishing before people become aware
of their existence. This situation is attributed mainly to large-scale
clearances of the biodiversity-rich tropical forests. Southern governments
are frequently blamed for letting this happen, but respond that as long
as Northern countries fail to share the benefits of commercial exploitation
of biogenetic resources, conservation cannot be justified economically.
Intergovernmental negotiations, such as those resulting in the agreed text
of the Convention on Biological Diversity, have to some extent accommodated
the demands of multinationals seeking access to the resources of biodiversity-rich
areas, and of Southern governments wishing to control what they regard
as their biogenetic assets. Unfortunately, indigenous peoples have
tended to be marginalised from these debates, as they are from by the types
of partnership promoted by many bioprospecting enthusiasts.

The Convention on Biological Diversity and the General Agreement on
Tariffs and Trade

The Convention on Biological Diversity (CBD) came into force in 1993 and
has been ratified by over 160 countries. There are three main objectives
(Article 1):

· the conservation of biological diversity
· the sustainable use of its components
· the fair and equitable sharing of the benefits arising out
of the utilization of genetic resources

Agreeing a text acceptable to governments in the biodiversity-poor North
and the multinational companies on one side, and the Southern governments
on the other, proved to be a difficult and contentious process. The latter
countries together possess most of the planet’s biological wealth but require
greater scientific, technological and financial capacities to exploit it.
The multinationals wanted continued free access to biological resources;
Southern governments demanded technology transfers and benefit-sharing
as conditions for access. To some extent Southern governments prevailed.
Nevertheless, only the United States refused to sign at the Earth Summit,
the other Northern countries deciding that it was an agreement they could
live with, as did most multinationals (Note from the editor: The
USA have in the mean time signed the CBD Agreement, but it has not (yet)
been ratified by their Congress). In many ways, then, the CBD is a framework
agreement setting out the terms on which the world’s biogenetic wealth
is to be shared out between nation states in the South and industrial concerns
mostly in the North, but with some potentially far-reaching concessions
to indigenous peoples and local communities. Thus, while the sovereignty
of nation states is now extended by treaty to all genetic resources within
their borders, the intellectual property rights of corporations were recognised
in the final version of the CBD, albeit in somewhat ambiguous language.
Brief reviews of these developments explain why indigenous peoples feel
threatened by them.

National sovereigntyAccording to Article 15:

Recognizing the sovereign rights of States over their natural resources,
their authority to determine access to genetic resources rests with the
national governments and is subject to national legislation.

Until recently, genetic resources have been considered as part of the common
heritage of humankind. Given the widely disparate abilities of countries
to exploit these resources profitably, it was understandable that developing
countries would wish to challenge this assumption. However, this extension
of the domain of the nation state is highly problematic for indigenous
peoples, because it appears to contradict international human rights law,
according to which ‘all peoples may, for their own ends, freely dispose
of their natural wealth and resources’. Indigenous peoples fear that governments
which enact legislation to implement the CBD will apply this principle
unrestrictedly, and thereby violate their territorial integrity and resource
rights (IAI-TPTF, 1996).

Intellectual Property RightsDeveloping countries in recent years have been put under tremendous
pressure to adopt intellectual property rights (IPR) regimes that accord
with the standards which now prevail in North America, Europe and Japan.
Discussions on the standardisation of IPR have taken place mainly during
the Uruguay Round of the General Agreement on Tariffs and Trade (GATT),
although the CBD is another important forum where IPR has been debated.

The Uruguay Round culminated in an international agreement commonly
known as the 1994 GATT Final Act, which was signed in 1994 by 124 governments.
It includes the Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs). During negotiations the United States and several other
Northern countries demanded protection for biotechnology products and processes
in the broadest possible sense, including the patenting of life-forms.
As a result, although members may exclude from patentability ‘plants and
animals other than microorganisms, and essentially biological processes
for the production of plants or animals other than non-biological and microbiological
processes’ (Article 27.3 (b)), TRIPs does not easily allow countries to
prohibit the patenting of all life-forms, whether on moral or other grounds.
Therefore, patenting of genetically-modified organisms and even human genetic
material will probably be permitted by more and more countries. Indigenous
peoples are outspoken in their opposition to such patents, considering
them to be violations of the sanctity of life and contrary to their moral
beliefs.

Despite certain ambiguities, the CBD tends also to support corporate
IPR. Thus, Article 16 on Access to and Transfer of Technology, states in
part:

In the case of technology subject to patents and other intellectual
property rights, such access and transfer [of technology including biotechnology]
shall be provided on terms which recognize and are consistent with the
adequate and effective protection of intellectual property rights.

While compliance with GATT-TRIPs and the CBD requires states to implement
domestic legislation consistent with their provisions, a potential conflict
exists. Implementing GATT 1994 will tend to harmonize IPR law, while national
legislation to implement the CBD in biodiversity-rich countries is likely
to link access to biogenetic resources to expanded nation state rights,
and perhaps indigenous rights, too. Two important and inter-linked issues
arise here: the possibility of adapting IPR regimes so they can protect
indigenous knowledge, and the question of intellectual and biological ‘piracy’.

Conventionally, IPR are conferred upon individuals and corporate entities,
but not upon communities. While intellectual property law can protect inventions
of companies based upon the knowledge of local communities, the community
knowledge itself cannot be protected. Furthermore, in the case of patents
the geographic location of the source of the raw material used for the
‘invention’ has no bearing on the decision to accept or reject a patent
application. These features of patents effectively support the act of ‘biopiracy’
in which indigenous peoples and local communities have their knowledge
and resources taken and used without their authorisation by corporations
and governments without their prior agreement. One controversial instance
of this is the case of the neem tree (Azadirachta indica), which
has been used for centuries by Indian farming communities for numerous
purposes, including protecting crops from insect pests. Two companies in
the United States have patents for derivatives of the active principle
without having compensated local farmers for their knowledge and prior
use of the tree. It is estimated that the global market for neem-based
bio-insecticides will reach US$ 50 million per annum by the year 2000 (AgBiotechnology
News, 1993 [in RAFI, 1994:49]).

Indigenous perspectives

Given the sources of knowledge in such cases as neem, the fairness of IPR
law is being questioned by indigenous peoples. The Draft UN Declaration
on the Rights of Indigenous Peoples expresses the concerns, demands and
aspirations of hundreds of indigenous peoples’ organisation around the
world. Article 29 states that:

Indigenous peoples are entitled to the recognition of the full ownership,
control and protection of their cultural and intellectual property. They
have the right to special measures to control, develop and protect their
sciences, technologies and cultural manifestation, including human and
other genetic resources, seeds, medicines, knowledge of the properties
of fauna and flora, oral traditions, literatures, designs and visual and
performing arts.

Evidently, indigenous peoples interpret their cultural and intellectual
property broadly, so that these encompass much more than knowledge, but
also their cultural heritage, their biological resources, and even their
cells and DNA.

In fact, indigenous peoples have their own regimes to regulate access
to and control over knowledge and resources that are often more sophisticated
than those based on IPR or national sovereignty. According to the North
American indigenous peoples’ organisation, the Four Directions Council
(1996):

Indigenous peoples possess their own locally-specific systems of jurisprudence
with respect to the classification of different types of knowledge, proper
procedures for acquiring and sharing knowledge, and the rights and responsibilities
which attach to possessing knowledge, all of which are embedded uniquely
in each culture and its language.

For this reason, the Four Directions Council argues that:
Any attempt to devise uniform guidelines for the recognition and protection
of indigenous peoples’ knowledge runs the risk of collapsing this rich
jurisprudential diversity into a single ‘model’ that will not fit the values,
conceptions or laws of any indigenous society. A better approach
… would be for the international community to agree that traditional knowledge
must be acquired and used in conformity with the customary laws of the
peoples concerned.

This perspective has limited support in the CBD, which, in Article 10(c)
requires contracting parties to:
Protect and encourage customary use of biological resources in accordance
with traditional cultural practices that are compatible with conservation
or sustainable use requirements.

For indigenous peoples, then, protection of knowledge and resources, and
continuation of customary law and practice, are central to maintenance
of their cultural identity. Therefore, control over these is an aspect
of human rights. This needs to be understood by all governments, companies
and other institutions before they enter into negotiations for the use
of biogenetic resources on the territories of indigenous peoples. These
negotiations should certainly involve indigenous peoples. Often they do
not. The following case, despite a generally favourable image, has attracted
criticism for failing to accommodate local needs and concerns.

The National Biodiversity Institute (INBIO)

The National Biodiversity Institute of Costa Rica is frequently hailed
as a model bioprospecting institution, and its agreements with pharmaceutical
companies are regarded as examples for other countries to follow. It is
true that INBio’s activities and collaborations have some positive features,
including capacity building and benefit-sharing. In other respects, INBio
and its agreements are inappropriate for other countries and may be inappropriate
for Costa Rica, too.

INBio is a private non-profit organisation which was established in
1989 with the blessing of the government. Its main objectives are to carry
out a species inventory of the country -- which is estimated to have 4%
of the world’s biological diversity -- and to explore the commercial potential
of the country’s biological resources.

Costa Rica’s 1992 Conservation of Wildlife Law (Laird, 1995;
Salazar and Cabrera, 1996) declares national sovereignty over the biological
diversity of the country. This is not equivalent to nationalisation of
all biogenetic resources in the country. Nevertheless, the State has the
exclusive right to grant permits to investigate, collect and exploit the
country’s biological diversity in the publicly-owned conservation areas,
which make up 25% of the whole country. The Ministry of Natural Resources,
Energy and Mines (MIRENEM) is authorised to grant bioprospecting permits
in these areas, and INBio has such a permit.

INBio’s first and best known agreement with a multinational company
was the one with Merck, which began in 1991 and has been renewed up to
the present. Merck gave INBio an advance payment of US$1 million, equipment
for an extraction laboratory, and a guarantee of royalties in case a product
is derived from any of the extracts (of plant and insect specimens) which
INBio will transfer to Merck. 50% of the royalties will go to the government’s
National Parks Fund through MIRENEM.

The agreement has certain positive aspects. First, the advance payment,
which is not a common feature of such agreements; second, INBio’s freedom
to supply extracts to other companies, including those given to Merck if
two years have elapsed since Merck received them; third, INBio has control
over taxonomic information on all its samples. Thus, if an extract shows
promise for Merck to continue its research it will have to approach INBio
again to obtain more material.

However, before promoting the Costa Rican approach as a model, certain
points merit consideration:

1) The government has granted INBio prospecting rights to explore lands
and biogenetic resources over which the State has jurisdiction. Although
Costa Rica is more culturally homogeneous than its neighbours indigenous
peoples exist whose inalienable rights to lands and resources pre-date
the existence of the country. Therefore if indigenous peoples are not parties
to negotiations, an argument can be made that both the government and INBio
are effectively usurping the territorial and resource rights of indigenous
peoples.

2) The government and INBio are the beneficiaries of the Merck agreement.
The only way that local communities appear to gain in any direct sense
is through the training of a small number of local ‘parataxonomists’. Furthermore,
INBio will not contribute at all to revitalising local knowledge traditions
because it professes to have no interest at all in such knowledge. Nor,
one can only conclude, in the cultural diversity that underpins such traditions.
According to Maurice Iwu, a prominent Nigerian scientist (in Dutfield,
1994):

The kind of deal that was done in Costa Rica cannot be done in Nigeria…
The kind of deal that India and Nigeria [etc.] will negotiate has to recognise
the multi-ethnic nature of our own societies.

3) A company like Merck will tend to seek cures for therapeutic groups
that are major concerns in developed countries, but which may be relatively
less important in developing countries where other diseases and infections
take higher priority. According to Iwu (in Baker et al., 1995:1343):
Screening strategies should include parasitic infections and diseases
(e.g., malaria) to aid in the search for new treatments for diseases of
primary concern to source country inhabitants, and proper objectives should
not be limited to the generation of pure chemical isolates as pharmaceutical
leads, but should include the standardization of phytomedicines for the
benefit of traditional healers and their patients. The inclusion of such
measures will contribute to an improvement of the quality of life of source
country inhabitants.

Indigenous initiatives for self-determination of bioprospecting rules

Indigenous peoples are concerned that bioprospecting expeditions, even
those carried out with good intentions, will infringe their rights. To
a large extent, the rules of the game are those of multinationals and nation
states, and indigenous peoples still find it difficult to get their voices
heard. In response, a growing number of groups, such as the Kuna of Panama,
the Awa of Ecuador and the Inuit of the Arctic have developed their own
regulations which visiting scientists must adhere to (Laird, 1995; Posey,
Dutfield and Plenderleith, 1995; Posey and Dutfield, 1996). In India local
communities are setting up community registers of local knowledge of biodiversity
to revitalise traditional knowledge systems for the benefit of future generations
and to protect them from piracy (FRLHT, 1995; Bhatia and Khotari, 1996;
Dutfield and Ghate, 1997). Such initiatives are being carried out independently
of governments and companies. Other indigenous peoples have declared their
opposition to bioprospecting. Participants at the UN Development Programme-sponsored
Regional Consultation on Indigenous Peoples’ Knowledge and Intellectual
Property Rights held in April 1995, called for a moratorium on bioprospecting
in the Pacific region and urged indigenous peoples:

not to co-operate in bioprospecting activities until appropriate protection
mechanisms are in place.

Indigenous peoples demand that their right to self-determination be recognised
beforethey
are prepared to enter into negotiations over access to their territories
and resources. Given the vital role indigenous peoples play in the conservation
of biodiversity it is vital for us all that national laws to implement
the CBD and GATT be enacted which uphold this right.

Bhatia, S. & A. Kothari, A. 1996. Community register for documenting
local uses of biological diversity. Bulletin of the Working Group on
Traditional Resource Rights 2: 9-10.

Counsel, S. & Rice, T. eds. 1992. The Rainforest Harvest: Sustainable
Strategies for Saving the Tropical Forests: Proceedings of and International
Conference Held at the Royal Geographical Society. London: Friends
of the Earth.

Dutfield, G. 1993. Conservation of the Tropical Forests and the Pharmaceutical
Industry. Unpublished MPhil dissertation. Cambridge, Department of
Geography, University of Cambridge.

Dutfield, G. 1994. Report on the Fourth Congress of Ethnobiology.
Oxford, UK; Working Group on Traditional Resource Rights.

Foundation for the Revitalisation of Local Health Traditions 1995. Beyond
the Biodiversity Convention: Empowering the Eco-system People. Bangalore,
India; FRLHT.

Four Directions Council 1996. Forests, Indigenous Peoples and Biodiversity:
Contribution of the Four Directions Council. Submission to the Secretariat
for the Convention on Biological Diversity. Lethbridge, Canada, Four Directions
Council.